138 Ohio App. 3d 116 | Ohio Ct. App. | 2000
On May 1, 1998, appellants filed an administrative appeal in the Summit County Court of Common Pleas, contesting April 8 and 10, 1998 decisions by the Summit County Human Resource Commission that denied appeals related either to the abolishment of appellants' county positions or to the layoff of various appellants. The administrative appeal was assigned to a Summit County Court of Common Pleas judge. For at least the next ten months, this judge proceeded to rule on various procedural issues related to the case. On August 31, 1999, however, a judgment entry was journalized in the case that bore the name of a visiting judge. This entry affirmed the decisions of the Summit County Human Resource Commission.
Appellants filed a timely appeal to this Court on September 30, 1999, raising seven assignments of error. Because the first assignment of error is dispositive of this appeal, we discuss only it.
The court below erred in transferring the case to another judge without a journal entry stating a permissible reason for transfer.
In their first assignment of error, appellants argue that the judge who authored the August 31, 1999 judgment entry was not the assigned judge, resulting in a voidable order that must be vacated. We agree.
All parties agree that there is no justification in the record for the visiting judge to decide the case.1 The Eighth District has explained that, absent an entry indicating proper transfer, "the judge assuming to act has no authority and his rulings are voidable on timely objection by any party."Berger v. Berger (1981),
This is not to say, however, that a deficient transfer always mandates reversal. Rather, as Berger explained:
[A]ny party objecting to reassignment must raise that objection at the first opportunity to do so. If the party has knowledge of the transfer with sufficient time to object before the new judge takes any action, that party waives any objection to the transfer by failing to raise that issue on the record before action is taken. If the party first learns about the transfer after action is taken by the new judge, the party waives any objection to the transfer by failing to raise that issue within a reasonable time thereafter. The definition of a reasonable time may well be controlled by time limits for motions for rehearing, reconsideration, or a new trial.
Id. at 131. We adopted Berger in Abood v. Nemer (June 28, 1995), Summit App. No. 16877, unreported. Appellee attempts to distinguish the Berger/Abood rationale from the instant case, arguing (1) that appellants failed to make a required demonstration of bad faith, fraud, or an improper reason related to the transfer, and (2) that appellants waived the ability to complain of the alleged error. We find both arguments unpersuasive.
First, appellee misreads Berger. Contrary to appellee's interpretation, Berger does not stand for the proposition that a party must make "an affirmative showing of bad faith or fraud in an assignment" or demonstrate that there was no proper reason for the assignment. Rather, Berger only requires that such a showing be made if the party wishes to assert a due process issue.Berger, supra, at 130. The failure to adhere to the governing procedural rules remains a viable and distinct source of complaint. Id.
Second, appellee's argument that appellants failed to preserve the error for appeal is unconvincing. Appellee argues that, because the appellants did not file a timely Civ.R. 60(B) motion upon first learning of the improper transfer, they did not meet the requirement under Berger that an objection to a procedural irregularity must be raised when a party first learns of the error in order to be preserved. We do not agree.
Although this court has previously ruled that the failure to timely object to the authority of a trial judge to preside over a case can waive the ability to later raise the issue of an improper reassignment on appeal, Abood, supra, the reasoning of Abood is not dispositive here. In Abood, the reassignment occurred prior to trial, but the appellants proceeded to trial without raising the issue of an improper transfer until after an adverse jury verdict was returned against them. In the instant case, it is agreed that appellants did not know of the transfer until after
the August 31, 1999 judgment entry was journalized. Appellants then filed a notice of appeal on September 30, 1999, within the permissible period for a timely *119
appeal. See App.R. 4(A). Appellee cites no authority that a Civ.R. 60(B) motion is the exclusive or even preferred avenue of relief. Nor has appellee addressed the statement of the Supreme Court of Ohio that an appeal constitutes an adequate remedy at law by which an appellant may contest the issue of an improper assignment. State ex rel. Berger v. McMonagle (1983),
Accordingly, the first assignment of error is well taken. The judgment of the Summit County Court of Common Pleas is reversed and the cause is remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Appellees.
Exceptions.
____________________________ DANIEL B. QUILLIN
SLABY, P.J., WHITMORE, J., CONCUR.
(Quillin, J., retired Judge of the Ninth District Court of Appeals, sitting by assignment pursuant to Section 6 (C), Article IV, Constitution.)
